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DEFENDANTS BEWARE THE LAST MINUTE EXCHANGE OF EXPERTS

Recently, the Appellate Division, Second Department in Stolarski v. DeSimone, 83 A.D.3d 1042, 922 N.Y.S.2d 151, 2011 N.Y. Slip Op. 03583 (2011), ruled that an expert’s report and affidavit attached to defendant’s motion for summary judgment would not be considered because the identity of the expert had not been disclosed prior to the plaintiff’s filing of the Note of Issue.

The tragic facts of this wrongful death case involve the decedent committing suicide by use of a licensed pistol owned by a defendant while in that defendant’s apartment. Although the court does not specify on what basis, the decedent’s estate also sued Family Services of Westchester County. The court affirmed the dismissal of the suit against the owner of the gun, but affirmed the denial of Family Services’ motion for summary judgment.

The Court found that the expert affidavit submitted by Family Services should not have been considered as the expert was first “identified” after the filing of the Note of Issue. The Court went on to state that Family Services “offered no valid excuse for the delay”. Once the expert’s affidavit was excluded, the Court ruled that Family Services had failed to satisfy its burden to entitlement to summary judgment, and the insufficiency of the plaintiff’s opposition papers were not an issue.

Prior to this decision, the Appellate Division had routinely excluded from consideration a party’s experts affidavits served in opposition to a motion for summary judgment, when such experts were identified and noticed for the first time post Note of Issue. See Santiago v. C&S Wholesale Grocers, Inc., 83 A.D.3d 814, 920 N.Y.S.2d 695 (2nd Dep’t 2011); seealso Gerardi v. Verizon N.Y., Inc., 66 A.D.3d 960, 888 N.Y.S.2d 136 (2nd Dep’t 2009). It would now appear that the movant who holds back noticing experts until after the filing of the Note of Issue will also suffer the same fate.

As a practicality, the Stolarski holding gives little guidance for defendants on how to address the issue of plaintiff prematurely filing the Note of Issue. Essentially this ruling requires defendants to anticipate when the Plaintiff would file the Note of Issue. The court only elaborated that the defendant “offered no valid excuse for the delay” of indentifying their expert after the Note of Issue was filed. Those who practice in the lower counties of New York State are well aware that a plaintiff’s attorney seeking to move their case along on the lengthy and clogged trial calendar will often file the Note of Issue early and improperly. Unfortunately, the courts often reward this behavior by refusing to strike the matters from the trial calendar and force the owed discovery to continue while the Note of Issue remains in place. Whether the improper filing of the Note of Issue scenario would be a “valid excuse” has not been tested.

It would seem that the most sensible course would be to hire experts early, and notice them pursuant to CPLR 3101(d) immediately after depositions. Obviously, this gives plaintiff’s attorney time to counter such anticipated testimony with his own expert, but this is a better alternative than having the expert excluded on a case that is subject to dismissal.